PENNSYLVANIA R. CO. v. DAY

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Argument of Richard N. Clattenburg

Chief Justice Earl Warren: Number 397, Pennsylvania Railroad Company, Petitioner, versus George M. Day, Administrator Ad Litem of the Estate of Charles A. DePriest.

Mr. Clattenburg you may proceed.

Mr. Richard N. Clattenburg: Mr. Chief Justice Warren, may it please the Court.

This case is here under writ of certiorari granted to review the decision of the Court of Appeals for the Third Circuit.

The issue here is whether an employee who is retired from railroad employment may sue in the Federal District Court to recover wage claims involving work which he performed while he was an active railroad employee on the basis of provisions of a collective bargain -- collectively bargained railroad labor agreement.

Or whether such claims are to be decided exclusively by the National Railroad Adjustment Board established under the Railway Labor Act.

There is no question on this case as to the review or finality of awards of the Board.

It is simply a question as to the initial jurisdiction over such claims by a retired employee.

The Plaintiff in the District Court below was employed by the Railroad as a fireman and engineer for a total of 40 years and he retired in March 1955 resigning and applying for an annuity under the Railroad Retirement Act.

During that period of seven years before his retirement, he had filed claims with the Railroad contending that he was entitled for additional pay under the agreement between the Railroad and its engineers represented by the Brotherhood of Locomotive Engineers.

Mr. DePriest claimed that on numerous occasions throughout this period, he was required, as engineer, to take a train outside his assigned switching limits on -- and on the tracks of a foreign railroad that on each of the some allegedly thousand occasions that he did this, he was entitled to receive an extra day's wages as engineer in addition to his regular pay.

These claims were handled under the administrative procedure of the agreement in the normal course of handling on the property and were denied by the Railroad which contested the claims on the basis that Mr. DePriest had not operated trains outside the switching limits and that they had not been operated on the tracks of a foreign railroad within the meaning of the provisions of the agreement on which Mr. DePriest provide.

However, upon his retirement, Mr. DePriest brought this suit against the Pennsylvania Railroad Company for these extra days pay which he claimed and his complaint was the normal type of diversity complaint alleging he was a citizen of New Jersey, Pennsylvania Railroad a citizen of Pennsylvania and alleging a jurisdiction with the amount well in excess of that required by the statute.

The Railroad then moved to dismiss the complaint on the ground that exclusive jurisdiction over the claims was in the National Railroad Adjustment Board.

The District Court below, in his first opinion in a 145 Federal Supplement 596 agreed that this was a type of claim over which the National Board has exclusive jurisdiction.

However, the Court went on to say that because there were other similar claims pending before the Adjustment Board which might establish some right and Mr. DePriest to recover in the Court and in view of the fact that certain questions with regard to statutes of limitations have been raised.

The District Court will retain jurisdiction but upon request would stay all proceedings until the awards of the Adjustment Board had been handed down in those other cases.

Accordingly, such an order staying proceeding was entered and an appeal was taken by this order to the Court of Appeals.

The Court of Appeals dismissed the appeal for lack of appellate jurisdiction.

About this time, Mr. DePriest died and his administrator was appointed by the New Jersey Court and substituted as plaintiff in this action.

While the appeal was still pending in the Court of Appeals, the National Board handed down awards in three similar claims for pay for engineers who under similar circumstances performed this type of work in the Philadelphia area where Mr. DePriest's claims arose.

These awards denied the similar claims and since this had happened and the proceedings had been stayed in the District Court pending the decisions on these awards, the Railroad again moved the District Court to dismiss the claims on the same basis before that the Court lack jurisdiction of the subject matter, thus jurisdiction being exclusively in the Adjustment Board.

Justice William O. Douglas: The Board didn't write any opinion in those cases?

Mr. Richard N. Clattenburg: The Court?

Justice William O. Douglas: The Board.

Mr. Richard N. Clattenburg: The Board has in those three cases which are I believe found in the appendix in the transcript of record.

The three awards are on -- beginning on page 9, the certificate of the award is on page 9 and the awards are found on pages 10 --

Justice William O. Douglas: Thank you very much.

Mr. Richard N. Clattenburg: -- 10 following in the transcript of records.

Chief Justice Earl Warren: We'll recess now Mr. --

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Argument of Richard N. Clattenburg

Mr. Richard N. Clattenburg: Prior to the lunch and recess I pointed out that after the Adjustment Board handed down awards in these other cases, the railroad again moved that the suit be dismissed in the District Court for lack of jurisdiction over the subject matter.

This motion was granted by the District Court, which entered an order dismissing the suit on the basis -- on the ground of lack of jurisdiction.

On review, the Court of Appeals below vacated this order and remanded case for further proceedings.

This is the decision from which the writ was requested by petitioner.

The court held that the Railway Labor Act did not deprive the District Court of jurisdiction over the claim for wages under the provisions of the agreement.

Now in order to clarify the issues here, I should like to point out at this time that the District Court in its opinion with the order dismissing the case held that these awards which the board had handed down in other disputes were binding on the plaintiff Mr. DePriest and his successor.

And the Court of Appeals in its opinion, reversing the District Court, held that they were not binding.

However, that question has not been raised before this Court that is not involved in the petition, the question of the effect of these other awards on the claims presented by respondent here.

The Court of Appeals' decision is based primarily on this Court's decision in Moore versus Illinois Central in 312 United States.

There this Court held that a railroad employee who is discharged by his employer was not required to exhaust his remedies under the Railway Labor Act, but could bring a suit in court for damages for the wrongful discharge.

The court below, in this proceeding, said they could find no reason to distinguish between the wage claims, these claims for extra days pay presented by Mr. DePriest in a suit in -- for damages for wrongful discharge.

The petitioner respectfully submits that the decision of the court below was in error and that the District Court, under the Railway Labor Act, in view of the exclusive jurisdiction of the Adjustment Board over claims of this type, did not have and does not have jurisdiction to decide these pay claims.

The Moore case on which the court below rested its opinion is the earliest case to come before this Court with regard to the jurisdiction of the Adjustment Board.

Moore, upon discharge, brought his suit for damages against the railroad, and when the case came to this Court, Mr. Justice Black, in his opinion, stated there was nothing in the act purporting to take away from the courts the jurisdiction to determine a controversy of a wrongful discharge or to make an administrative finding a prerequisite to filing a suit in court.

There was language in his opinion which at that time was believed to indicate that both the railroads and their employees could -- were free to go either to court or to the Adjustment Board with any type of grievance or claim or dispute.

However, subsequent cases in this Court have limited the jury -- the jurisdiction of the courts and these disputes arising out of the interpretation and application of collective agreements in the railroad industry.

In 1946, in Order of Railway Conductors against Pitney this Court held that a District Court which was administrating a railroad then in bankruptcy should exercise its equitable discretion, permit a dispute over the manning of trains between conductors and trainmen, the organizations to be preliminarily decided at least by the National Railroad Adjustment Board.

This Court pointed out that Congress had created in the Adjustment Board an agency especially competent and specifically designated to deal with the intricate and technical and factual questions involved in the dispute.

And again in 1950, this Court held in the Slocum case, Slocum versus Delaware, Lackawanna & Western and in the Order of Railway Conductors case, both in 399 US, that the jurisdiction of a National Railroad Adjustment Board over this type of dispute arising under the railroad collective bargaining agreements is exclusive.

The Slocum case involved a dispute on the Delaware, Lackawanna between the telegraphers and the clerks over the filling of certain jobs.

The railroad went to the State Court of New York for declaratory judgment as to which -- as to which group of employees should be used for these particular jobs and the court granted that declaratory judgment.

When the case was brought here, the decision of the State Court was reversed and in his opinion Mr. Justice Black said, this case -- in this case the dispute concerned interpretation of an existing bargaining agreement.

A settlement would have prospective as well as retrospective accordance to both the railroad and its employees, since the interpretation accepted would govern the future relations of those parties.

This type of agreements has long been considered a potent cause friction leading to strikes.

The act does represents considered effort on the part of the Congress to provide effective and desirable administrative remedies for the adjustment of railroad employee disputes growing out of the interpretation of existing agreements.

The Adjustment Board is well equipped to exercise its congressionally imposed functions.

Its members understand railroad problems and speak the railroad jargon.

Long and varied experiences have added to the board's initial qualifications and it went on to talk about desirability of the precedence and uniform interpretation of railroad labor contracts.

The Companion case the same day, reached the same conclusion.

These were claims involved in the Order of Railway Conductors case claims for extra pay by conductors, similar to the claims that Mr. DePriest presented to petitioner.

And the court held that over these claims the Adjustment Board had exclusive jurisdiction.

And then a separate opinion in that case, Mr. Justice Black stated that the case sharply points up the conflicts that could arise from State Court intervention in these disputes.

In that particular case as the opinion pointed out after the suit was brought, the union representing these conductors took the case to the Adjustment Board, but despite that fact the court I believe the South Carolina court proceeded to grant declaratory judgment.

And that --

Justice William J. Brennan: (Inaudible) this decree might have brought an action before his retirement, is that it?

Mr. Richard N. Clattenburg: My position Your Honor is that in this case before his retirement and after his retirement he could only take these claims to National Railroad Adjustment Board.

Justice William J. Brennan: Yes, no might he have -- he didn't have to wait for retirement before asserting his claim?

Mr. Richard N. Clattenburg: He did assert his claims before his retirement, the claims were pending before his retirement, and they rose out of work which he performed during the seven years before his retirement beginning in 1948.

Justice William J. Brennan: Had his seven -- the claim a motion before this --

Mr. Richard N. Clattenburg: They had been handled with the railroad under the usual procedure for handling grievances with the employees.

Justice Tom C. Clark: And that was the Adjustment --

Mr. Richard N. Clattenburg: Excuse me sir.

Justice Tom C. Clark: (Inaudible) any adjustment--

Mr. Richard N. Clattenburg: They had come -- they had not gone to any board they had been denied by the railroad, they were among many similar claims as the record shows.

Justice William J. Brennan: How long before his retirement have they been denied by the railroad?

Mr. Richard N. Clattenburg: I don't know the exact date.

Under the normal railroad agreement a claim is filed say with a man's immediate supervisor and most agreements provide that unless it's denied, they have to be denied within 10 days of (Inaudible) and then there is a progression to higher officers of the railroad and the Railway Labor Act doesn't spell that out, but normally there is an agreement on each railroad providing with time limits the levels to which those are handled.

Normally also there is a time limit within which a claim can be presented, but he had presented claims beginning in 1948.

As a matter of fact we have great many claims as the record will show of other employees too including these have gone to the Adjustment Board in that during this period.

Justice Felix Frankfurter: (Inaudible) and the employer of the railroad this -- that the National Railroad Adjustment Board which has had a jurisdiction, jurisdiction the other way around the court wouldn't have --

Mr. Richard N. Clattenburg: That is my position Mr. Justice Frankfurter and I do not believe that my opponent would differ with me on that, although there is an indication in his brief that he believes that whether an employee is in active service or not, he has a right to go to court.

There is an indication in his brief which I will get to little bit later.

I don't -- I think I cannot frankly say this -- I wouldn't want to mislead the court or have to be contradicted by Mr. Davis.

Justice Felix Frankfurter: Why do you think, why do you think they could not have gone to the court, had he continued be an active member?

Mr. Richard N. Clattenburg: An active employee.

Justice Felix Frankfurter: An active employee, I beg your pardon.

Mr. Richard N. Clattenburg: Under the basis of the Slocum case which held that the jurisdiction of the Adjustment Board is exclusive with regard to these pay claims involving interpretation of the collective bargaining agreement.

Justice Felix Frankfurter: What in your view is the reason for assuming your right on the law, what is the reason?

Mr. Richard N. Clattenburg: The reason for that is that Congress has intended the settlement of these disputes to be kept in the railroad family in this state within a state, as this Court has characterized the railroad industry and has provided a detailed method with specific remedies for the employees giving them special advantages over the employers and a statutory remedy which removes from the courts the necessity to enter into these technical interpretations of collective agreements.

Justice Felix Frankfurter: What consequences from taking the view that there is concurrent jurisdiction, (Inaudible) to Adjustment Board or to a court?

Mr. Richard N. Clattenburg: That was pointed out by Mr. Justice Black in the Southern Railway case where he said that, that would result in a race of diligence, employee which could get to the Court or to the Board first or to get a decision first from one of the other would have the advantage and it would also deprive, the one who went to court would deprive the other party of the right granted by Congress to go to go the Adjustment Board.

That has been pointed out again of course Your Honor in Chicago River case decided by this Court in 1957, which held that in effect Congress intended the Adjustment Board to be a form of compulsory arbitration and gave specifically in the act a right to either party to go that board and if either party went to the board, the findings were binding on both parties.

Justice Felix Frankfurter: You said you used the word intended or intention, well the fact that the intention is so crystal clear that by reading that statue I can find it, can I?

Mr. Richard N. Clattenburg: Your Honor if --

Justice Felix Frankfurter: From the words I can't find it, I cannot.

Mr. Richard N. Clattenburg: The intention to make -- to have these cases within the exclusive jurisdiction of the Adjustment Board.

Justice Felix Frankfurter: Congress hasn't said that, and it hasn't used words that indicate that.

Mr. Richard N. Clattenburg: Your Honor --

Justice Felix Frankfurter: (Inaudible) there must be a legal reason than that, isn't it?

Mr. Richard N. Clattenburg: Well, if the intention which I think has been evidenced in almost all railroad labor legislation to provide for settlement more or less within the family of these disputes so far as possible.

Justice Felix Frankfurter: (Inaudible) just because they want to put railroad –

Mr. Richard N. Clattenburg: Well, in order to prevent an interruption -- in order to prevent interruptions to commerce and to permit the peaceful operations of railroads among others.

Justice Felix Frankfurter: Well not that -- this doesn't involve the non peaceful operations.

Mr. Richard N. Clattenburg: This case itself could involve the non peaceful operation Mr. Justice Frankfurter, and that is the purpose of my argument here.

I'm anticipating myself, but the distinction here which lower court made is that if he were an employee he would be bound by Slocum and he would have to go to the Adjustment Board, but now he is retired.

Somehow perhaps he is physically removed, perhaps he isn't from his other employees, but it doesn't matter what happens to the claim of employee who is retried and in my brief and again in my argument I wish to point out that when you have claims of the same kind, held by a class or potentially held by a class, and for some reason you say those are retired or resigned or get fired can take their claims to court have them decided there, but everybody who stays in the railroad employment must go to the Adjustment Board under the Slocum case.

Inevitably you are going to have the problem that the man who retires will go to court and win one of these cases and all this body with similar claims before the Adjustment Board may lose their cases, it could be the reverse.

Justice Felix Frankfurter: Wouldn't they be bound by the adjudication?

Mr. Richard N. Clattenburg: This Court held in the Moore case that if there is any interpretation made by a collective agreement by a court in connection with one of these wrongful discharge cases, it would not be binding upon the Adjustment Board.

Justice Felix Frankfurter: So that you could have the Court say, this is -- let me go back.

If the railroad admits the justice of the claim but says it must be determined, is that -- was it an abstract position you took?

Mr. Richard N. Clattenburg: In this case no.

Justice Felix Frankfurter: Or is it you contest?

Mr. Richard N. Clattenburg: We contest the interpretation of the agreement.

Justice Felix Frankfurter: So that there was involved a problem of construing an agreement.

Mr. Richard N. Clattenburg: There is a problem with construing an agreement and together with that agreement the use of just customs and practices in the railroad industry that have grown up under that agreement.

Justice Felix Frankfurter: Can any judge -- is every judge confident by reading that agreement to decide what it means?

Mr. Richard N. Clattenburg: I wish that every judge were confident so to decide Your Honor.

Justice Felix Frankfurter: And if the confidence doesn't arise from the fact that he is an intelligent judge, does he?

Mr. Richard N. Clattenburg: Your Honor, the difficulty is that you take an agreement of the kind of here and the provision involved in this case as quoted in the briefs of the parties, and you run into term such as those here involved, foreign railroad, switching limits, work outside, emergencies, all those things mean definite things to somebody who reads them or who hasn't read a railroad labor agreement before, but it certainly is astounding what they can mean in the hands of the Adjustment Board.

And it takes into consideration also -- you have so many things to take into consideration, because the language maybe clear or seemingly clear, but you find that the railroad meaning is entirely opposite to that.

Justice Felix Frankfurter: What if --

Mr. Richard N. Clattenburg: It's inevitable that if the Adjustment Board does not have the jurisdiction over these disputes.

We will have court decisions which conflict on the same railroad under the same agreement and when that happens, if it -- certainly if it's the case where the men working on the railroad have lost their claims before the Adjustment Board, that the man who retired has won his, you are going to have intense dissatisfaction among your employees.

Justice Felix Frankfurter: Was this case tried before the jury or judge (Inaudible) assuming there is jurisdiction -- tried to jury or could it be tried to a jury?

Mr. Richard N. Clattenburg: One of the arguments presented by respondent here is that to require submission to the Adjustment Board would mean to deprive the respondent of the right to a trial by a jury under the Seventh Amendment.

I assume there would be trial before the jury.

Justice Felix Frankfurter: So that the jury presented a verdict which would -- in which the construction of the statute wouldn't be so clearly adjudicated that it would come up here to this Court by chance and say that they misconstrued the government, could they?

Mr. Richard N. Clattenburg: That is quite correct.

Chief Justice Earl Warren: Do I understand there are about a half a million or more retired railroad men in every railroad center large and small in the nation?

Mr. Richard N. Clattenburg: I couldn't tell you how many, but in my brief I closely -- the Adjustment Board --

Chief Justice Earl Warren: Some place, the figure 600,000 I don't know where it --

Mr. Richard N. Clattenburg: Your Honor, I wish I could adopt your figures, but in my brief there is a footnote.

Chief Justice Earl Warren: I might have (Inaudible)

Mr. Richard N. Clattenburg: On page 30 of petitioner's brief there is a footnote pointing out that in 1956 to 1957 there were some 361,000 retired road employees receiving annuities from the retirement board.

Chief Justice Earl Warren: Yes.

Mr. Richard N. Clattenburg: And that, in the following year about 42,000 retired.

Chief Justice Earl Warren: Well that's --

Mr. Richard N. Clattenburg: May I suggest this also, this isn't confined to retiring employees, because the basis on which the Court below decided the case was that upon his retirement, Mr. DePriest was no longer an employee within the meaning of the Act, and therefore the Adjustment Board had no jurisdiction apparently.

Although the court doesn't specifically say that the Adjustment Board has no jurisdiction nor that there is a concurrent jurisdiction, but it closed the definition of employee.

It relies on the fact that in the Moore case, Moore quit his employment, gave up his right to employment and apparently his position is that anyone who ceases to be railroad employee, if he has a wage claim of some kind against the railroad under one of these agreements can then sue in court.

So not only we do have retired employees, we have all those who work for a month for the railroad and quit and anyone else who has been in railroad employment and then says well I've given it up, it may even apply to people that (Inaudible) forced reduction, then wouldn't say well I'll quit, but go to court and collect these claims.

See that was -- there is a further source here of difficulty for the railroads and the unions and the Adjustment Board, because inevitably if a contract is construed by the Adjustment Board as providing one thing, which would deny the claim from employees, but some court or jury and some state court possibly holds contrary wise with regard to retire to other employee, you then have the fact that that is undoubtedly going to be pressure on the union.

There's going to be dissatisfaction.

Now employees will say, well now he can quit his job and collect this money, but the union can't collect it from me, and I can't go to the Adjustment Board and get it because they rule out these claims, and there will be pressure, difficulty; perhaps even demands from the unions that the agreement be changed, which would be probably the most logical thing which in turn could result in eventual disruption of interstate commerce.

Justice William J. Brennan: That where I gather, this was a diversity case.

Mr. Richard N. Clattenburg: This was a diversity case Your Honor.

Justice William J. Brennan: And the claims would be actionable in the state courts too, isn't it?

Mr. Richard N. Clattenburg: Well of course this case under the complaint alleges damages of $27,000, which would meet even the new standards --

Justice William J. Brennan: Well I mean where there is no diversity.

Mr. Richard N. Clattenburg: Where there is no diversity it would fall into state court under the theory below.

So we would have not only a conflict -- if the board has no jurisdiction with regard to somebody who has left railroad employment by retiring or resigning, then you have the problem of conflicting court decisions.

If you have concurrent jurisdiction in those cases you have conflicts not only between the courts but with the board decisions and petitioners urges here that the intention of Congress to provide a self contained and, let me say a method of preventing difficulties in the railroad industry, as indicated in this Court's prior decisions, can only be met by holding that if the man is an employee subject to a collective agreement when he, when his claim arises for pay or whatever it is, no matter what happens to on the change of status after that that is a dispute covered by the Railway Labor Act it arises when he is an employee.

Justice Hugo L. Black: That would require overruling Moore, wouldn't it?

Mr. Richard N. Clattenburg: Your Honor, I believe that Moore has been generally held and I believe it should be properly held to apply only to a wrongful discharge situation.

In the Moore case Mr. Justice Black and in the Slocum case distinguish it -- distinguishing it I -- in my opinion the prime distinction is that it was held in those cases that the courts could provide a remedy and damages for wrongful discharge which the board could not provide.

In other words, the Moore case held that Congress, in setting up the system, did not intend to deprive the employees of the common law statutory right to bring in action for breach of contract as distinguished from a claim involving wages under the alleged interpretation of the contract.

Justice Hugo L. Black: Well I thought your argument was maybe, it's right, I'm not saying it's not (Inaudible) I understood from your argument that any suit by an employee requires interpretation of Congress while he was an employee, should go to the board and not to the courts.

Mr. Richard N. Clattenburg: Your Honor –

Justice Hugo L. Black: If you went that far, it would say that the man who has been wrongfully discharged (Inaudible)

Mr. Richard N. Clattenburg: Your Honor, in the Slocum case, in distinguishing the Moore case, it was pointed out that the decision of the court might or might not involve interpretation, but if it did it would not affect future relation of the employees.

Now in your wrongful discharge case and I am speaking practically from the standpoint normally it's a question of procedure in connection with the discipline or whether the discipline justified discharge.

That isn't the type of dispute which a man retiring leaves with other, with other employees.

A man who is discharged, he doesn't leave behind him on the railroad property a lot of people with the same claims, the same -- there isn't likely to be the conflict in decision there.

Each wrongful discharge case in effect is a different case.

Now there is a possibility Mr. Justice Black that a court may say such and such a rule is followed by the railroad in conducting this one proceeding is unfair or it was improperly applied, but that is not the same thing.

The court -- the railroad normally in a case like that will correct any procedure it has, would follow the court action in order to avoid possible future damage suits for wrongful discharge but it does affect the relations of the employees in the same way that a claim under the agreement involving seniority or severance pay or something of that sort would do.

Here Mr. DePriest when he retired, left numerous similar claims pending on the property.

If he has, if he has or is -- the opportunity to go to court, he is required to go to court, there is the clear chance that other people who are in the identical situation with claims arising for identical work will have their claims denied and this dissatisfaction will be created by a contrary interpretation by some judge or jury with regard to the identical claims.

Justice William O. Douglas: How do you -- how do you squeeze into the definition of employee of Railway Labor Act, a person who is an ex-employee, a retired employee, a man like Mr. DePriest?

Mr. Richard N. Clattenburg: When the claim arose Mr. Justice Douglas, he was an employee.

His claim is entirely based on the employee relationship.

In view of the importance of this, I feel that Congress intended that the Railway Labor act should take hold at the time the claim arose, not at the time maybe 5, 10, 15 years later when he might retire, then relinquish it and permit him to go to court to sue.

I feel that once that claim arises from the employer-employee relationship from the collective – interpretation of the collective agreement –covering that, it is no stretch of the provisions of the Railway Labor Act to say that that procedure having taken hold, it applies throughout the handling of that claim.

May I point out Mr. Justice Douglas that the provisions of the Railway Labor Act with regard to this in Section 3 (1) (i) & (j) which are on page 41 of the appendix of the petitioner's brief Section 3 (1) (i) says that disputes between an employee or a group of employees and a carrier, carriers --

Justice William O. Douglas: I was looking at the definition of employee on page 36.

Mr. Richard N. Clattenburg: Your Honor there is no question in this case that this gentleman was an employee when the dispute arose.

Now if the adjustment of -- the jurisdiction of the Adjustment Board, is confined that strictly.

It means that there are many, many situations in which inevitably the courts would be given jurisdiction which I submit to the court has not been the intention of Congress.

For example you have an agreement providing severance pay or separation allowances.

I don't know of many in the railroad industry but they are common in the industry.

If you have an agreement of that kind providing say, x number of days' pay at the employees last regular rate for each year of service that he has performed for the railroad, if there is any dispute about the application of those things, it will never arise when the man's employment has been terminated.

And all of those questions and they are not as simple as they sound even from the language I have given you, but inevitably would be before the courts rather than for the Adjustment Board.

In other words, it amazes me in fact that this case has not come before this Court before since the -- since the act has been in existence for 25 years.

As the records shows the Adjustment Board has handled these claims of retired employees, claims by states of the deceased employees and so far as I know it has the full remedy to provide the, in those cases what is required.

If you go to the courts you have the conflict of decisions and the confusion which the Slocum case indicated was not intended by Congress with regard to this type of dispute.

Justice Hugo L. Black: May I ask you a question to get your idea.

We proceeded rather warily on this ground as you feel, as you know, but it was pretty strongly indicated that maybe a good line would be to let ex-employees sue after they have left the railroad on the basis, on the rationale, maybe that wouldn't interfere with the relationship of the railroad and its then employee.

Now if, as you argue, that is a bad division, what would you suggest?

Mr. Richard N. Clattenburg: I would suggest that any claim arising under the terms of the collective bargaining agreement, arising through the employment under that collective bargaining agreement should be within the purview of the Adjustment Board.

Justice Hugo L. Black: And that would bring Moore, wouldn't it?

Mr. Richard N. Clattenburg: That would not bring Moore in, in my opinion because that is a different type of suit.

Justice Hugo L. Black: It's a different kind of suit but --

Mr. Richard N. Clattenburg: It's an entirely different suit.

There maybe an interpretation there but the suit doesn't arise from that.

In Moore the wrongful discharge was necessary before -- or a discharge from a point was necessary before the suit could be brought.

In a case of this type where the man retires or quits or is fired from his job none of those incidents have anything to do his actual claim.

It maybe true in the severance pay case that maybe a borderline one there I must admit, perhaps I shouldn't have given that as an example earlier, but the claim has nothing to do with his subsequent retirement.

In wrongful discharge suit in Moore, you have a different type of remedy being asked, something the Adjustment Board cannot give and in addition to that, you, you have the fact that if it weren't for the termination of employment there wouldn't be any claim.

Justice Hugo L. Black: Do you think of it's more in the nature of a suit for malicious interference of contract?

I suppose you would say that one, under your definition, under what you want, a man wouldn't have to go to the board to get his contract interpreted.

Mr. Richard N. Clattenburg: If he was no longer an employee --

Justice Hugo L. Black: No longer an employee and someone had maliciously brought about his discharge but it might depend in part on the bargaining agreement.

Mr. Richard N. Clattenburg: Well of course, Mr. Justice Black there is an area which the act apparently does not cover which would involve that type of thing and that is the suit by the employee against the union for improper representations through making an agreement or handling a grievance and those cases have been -- have been held to be within the court's jurisdiction because they are not disputes between the railroad and the employee.

But here you have a dispute which initially and ever since that has been really an employee railroad dispute.

If he hadn't enjoyed this employee status under the collective agreement he wouldn't have any right to this.

He is claiming under the agreement.

The fact he is retired as incidental as if, he had been promoted out of the agreement to a supervisory position or anything else that might have happened to him and in our opinion these cases conceivably if the door is opened to court suits either concurrent with the Adjustment Board jurisdiction or exclusively for the courts, as indicated by the opinion below, would create a fertile source of controversy and difficult in railroad field.

Justice Felix Frankfurter: Your line of drawing (Inaudible) that and I am rephrasing the sentence then to effectively to what Justice Black is asking is the Moore case, may the Moore case be, it could be pocketed by saying that in Moore, he says, his claim is that the railroad has denied his right any longer to have any rights under a contract, but indeed in your case, he is seeking some right under a contract.

Mr. Richard N. Clattenburg: Mr. Justice Frankfurter, I would like to agree with you, but remember that in the wrongful discharge, you may have the element of a denial of right during a discipline hearing for example prior to discharge which may also be involved in that suit.

It's certain --

Justice Felix Frankfurter: I'm talking about Moore.

Mr. Richard N. Clattenburg: Yes.

Justice Felix Frankfurter: You may gather from my limited agreement with the result in that case, I didn't -- I couldn't agree to it, I dissented in the case (Inaudible) assume I want to (Inaudible) that case then I repeat my words properly in good conscious by saying that case was in effect a suit for having been improperly discharged, having had his relation severed which were not suing under the contract, but suing that the contract rights had denied him a continuing status whereas here there is no question that he sues under a statement and the right to flow from that statement.

Mr. Richard N. Clattenburg: Yes Mr. Justice Frankfurter and may I point out that the language which I had meant to quote the Court which distinguishes the Moore case in the Slocum opinion, although it says having ceased to be an employee he brought action for wrongful discharge, he accepted his discharge.

In my opinion there is nothing in that language which should be construed to mean that having ceased to be an employee you can bring any type of a claim against your employer and the railway labor act no longer applies.

I feel that it is essential that the administration of the Act, that the decision in Moore be pocketed to the type of case where it is an action brought because of denial of status, not as action as Mr. Justice Frankfurter has said.

Justice Felix Frankfurter: Maybe your memory is fresh on the subject and mine isn't, that was merely (Inaudible).

In the Moore case was there an actual contest that there were involved so called technical or specialized railroad terms which a court would have to -- which if a court construed, which a court would have to construe in order to deal with the case and that such a constructions maybe an embarrassment to the construction of the same clause in Railroad Adjustment (Inaudible)

Mr. Richard N. Clattenburg: I do not know to what extent such argument --

Justice Felix Frankfurter: Or was it a general proposition that because there was adjustment scheme you must always go to the Adjustment Board.

In the case (Inaudible), I think it's acceptable of the latter, that there is no discussion of what kind of issue was involved, except it went on the broad base, must there be a prior, must there be a primary likely (Inaudible) case, must you go to the adjustment because such is the structure of the Railway Labor Act, is that right?

Mr. Richard N. Clattenburg: Yes sir.

Chief Justice Earl Warren: To your knowledge did the Moore case stimulate much litigation?

Mr. Richard N. Clattenburg: There were a considerable number of decisions Mr. Chief justice Warren, following that case deciding wrongful discharge cases and also decisions on claims under the agreements.

There are not too many reported, I know there were some, most of them probably were lower court cases.

Chief Justice Earl Warren: Is there much of that final litigation now, if you know, if you don't --

Mr. Richard N. Clattenburg: There were a considerable number of wrongful discharge cases being brought under Moore.

I do not believe there have been very many cases brought under Moore case on this theory that having left -- the only case, other case beside this one that's referred to in the briefs is the Sapporo case which was decided by the Third Circuit.

And as I understand it, that was a suit against the Pan American Airways by I believe a Puerto Rican I think it's been here before this Court four or five times on certiorari.

There was a problem before the Second Circuit with regard to a claim under a wage contract and in that case also the Court said we don't see the distinction between a suit for wages and a suit for wrongful discharge.

Actually the record in that case that followed through shows that Mr. Sapporo never would give up his right to leave the statement, so far as the courts in this country were concerned, as far as I can tell from the record and refused to follow the advise of courts that he sue for wrongful discharge.

So far as that particular stage of case is concerned I believe he is still is claiming employee states, and even under the theory of the Court below would not have been entitled to sue in court for the wages.

Justice Felix Frankfurter: May I ask one or two further questions, one question surely.

Wrongful discharges or a distance to wrongful discharges are usually based on what kind of claim, why wrongful?

Why does the petitioner or the plaintiff say wrongful?

What kind of right is the railroad invoking which the ex-employee proposes?

Mr. Richard N. Clattenburg: The ex-employee is usually saying I committed an offense, but it didn't merit this charge, many of those cases go to the Adjustment Board or he says you didn't prove any offense, I didn't commit it and there was no proof of it.

Another type is, I was denied the rights under the agreement to a fair trial or perhaps the agreement requires that it be proved beyond a reasonable doubt that I committed this, there are all sorts of claims.

Justice Felix Frankfurter: My impression is very limited evidence, but my impression is that the discharge cases relate to problem of a very different order normally than claim (Inaudible) or claims of running down the road or extra pay, et cetera, et cetera.

Mr. Richard N. Clattenburg: Generally that is correct.

They affect a very small minority of employees.

Justice Felix Frankfurter: I don't mean in number, but in quality of problems, the nature of the problem, and once you've enumerated, you didn't have a fair hearing, that is the specialized railroad question or he --

Mr. Richard N. Clattenburg: That's correct, they may involve questions --

Justice Felix Frankfurter: But the (Inaudible) didn't fit the crime, things like that, there were very different orders in construing technical provisions regarding wages, stages, extra pay, preferential treatment, et cetera, et cetera, is that right or wrong?

Mr. Richard N. Clattenburg: I believe that is correct, although I think I'll leave it at that point.

Justice Hugo L. Black: But in Moore as I recall it there was more than that.

There was a procedure under which his claim, he should have gone up through the general courts to his general superintendent, in order to get the terms of the contract interpreted and he chose to accept that discharge, rather than go through that procedure.

I want to ask you this question, we've said and spoken on that, a common law, a statutory action for wrongful discharge, not only different from any remedy which the board has power to provide, but it -- the board couldn't provide it.

I understand you to say that the -- exactly the same result could occur here from an action by the board?

Mr. Richard N. Clattenburg: In this case Mr. Justice Black these claims for so many days pay if taken to the Adjustment Board, can -- those claims can be awarded to the petitioner by the Adjustment Board.

There is nothing that the Court could do here that the Adjustment Board could not do for the respondent.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard N. Clattenburg: That is correct Your Honor but --

Justice Charles E. Whittaker: You claim that there is some ambiguity (Inaudible)

Mr. Richard N. Clattenburg: I would, I would like to point out that Section (i) provides certainly that the dispute is between an employee and an employer but my position here is that there is nothing in the act which need imply or expressly state that the moment the employee relationship terminates that dispute terminates.

That -- I am not sure whether I can give an example in another field, but to me it's a little bit as though I have an agreement with, to do some work for someone and I have an agreement that any dispute while I am doing that work will be arbitrated.

I feel that if I finish the work and then I have a dispute over pay I'd probably – I'm bound to go to arbitration on that.

I don't feel that I can say well our work is done and we didn't mean that finally dispute arose after I had done the work, and after arbitrated, I can go to court.

I feel that Congress here intended disputes which so affected interstate commerce is to require the establishment of the specialized board to be handled by that board if they were disputes which fitted into that category and arose from the employer-employee relationship, while a man was an employee because otherwise you have the conflict that Congress was trying to avoid.

Justice Charles E. Whittaker: (Inaudible)

Mr. Richard N. Clattenburg: That's correct Mr. Justice Whittaker.

Justice Hugo L. Black: You say – he said one thing and I wonder if you could (Inaudible), you said that -- you felt that Congress intended to have this decided by that board even after the man cease to work with the railroad.

Mr. Richard N. Clattenburg: Well --

Justice Hugo L. Black: What -- do you understand was the basic purpose of the passing of the act, the basic --

Mr. Richard N. Clattenburg: To settle the disputes between the employers and the employees.

Justice Hugo L. Black: To prevent strikes.

Mr. Richard N. Clattenburg: That's right.

But I believe that if you can create to satisfaction of the kind which can result from permitting retired, discharged employees to take their pay claims to court that certainly that was within the general intent.

These are claims arising solely from the employer-employee relationship, the act in Section 3 first (i) talked about either party referring into the board.

And then the dispute of course itself arises from the employee relationship.

The act permits the parties.

It doesn't say the employee still being an employee taking to the board.

Justice Hugo L. Black: But you are saying that the, and maybe you are right, you are saying if the statutes are re-construed showing the intent of Congress have all disputes with reference to a contract between the employer and employee --

Mr. Richard N. Clattenburg: Employer.

Justice Hugo L. Black: Decided by the board.

Mr. Richard N. Clattenburg: I am accepting --

Justice Hugo L. Black: Even though that relationship has ceased to exist, they have ceased to exist for five years and if anything has to come up he is still has to go this special proceeding.

Mr. Richard N. Clattenburg: That's correct.

Justice Hugo L. Black: And if you can just find that in the congressional intent (Inaudible) I am not saying it was?

Mr. Richard N. Clattenburg: My petition is that this Court find it in the congressional (Inaudible)

Justice Felix Frankfurter: Well is it not a different position of consideration, in the first place this suit began while he was still, I mean still had status of employment, is it not?

But there's another consideration to the extent that you can claim under a collective agreement with a railroad, it can be taken to court without being passed on by the board, by the railroad labor machinery and a favorable result is given in a court under a provision of a collective agreement, a favorable decision for the construction of that clause, it doesn't require a much imagination to realize that all the existing employees who want to have the advantage of such decisions and thereby they will make a demand and if that demand is resisted and they may well feel that the railroad isn't obeying a court order and you might get the potentiality for the strike.

Mr. Richard N. Clattenburg: May I point out one thing before I sit down, I'd like to save a few minutes for rebuttal.

There are court decisions construing agreements, collective agreements to the effect that even the discharged man has nothing to do with follow-up procedures of the act.

The agreement itself says your only remedy is reinstatement under this agreement and there is a tendency in the industry to -- by agreement perhaps to limit this, what can happen to the person who is making a claim under an agreement no matter when he claims it.

But even so that the problem which is raised by this case cannot be solved by hoping that perhaps agreements will eventually be construed to reach the same result if such agreements are entered into by the employers and the unions.

Chief Justice Earl Warren: Mr. Davis.

Argument of James M. Davis, Jr.

Mr. James M. Davis, Jr.: Mr. Chief Justice, may it please Your Honors.

I'd like to at the outset put this case somewhat better in the time setting that I think Your Honors should have.

The pleadings indicate that Mr. DePriest became an employee of the Pennsylvania Railroad in the year 1915.

I point out to Your Honors that that of course antedated the Railway Labor Act of 1934 and also the act, the original act of 1926 and that at the time he became an employee and at least thereafter until 1926 if he had any dispute with his employer concerning his right to be paid wages or the construction of his contract of employment, he had one place to go and get his remedy, and that was through a court of common law jurisdiction.

In 1926 of course the Railway Labor Act was enacted and we have now to consider the amendments of 1934 and the construction that this Court has from time to time placed up on both acts.

Now in 1951 Your Honors we submitted three cases to the National Railroad Board of Adjustment which for practical purposes can be said to be companion cases to the DePriest case.

We submitted them there only after we had filed a suit in the United States District Court for the District of New Jersey in which we sought the judgment and we went all the way after we were told by the district judge that he had no jurisdiction except to see to it that we had a forum for – bear in mind these cases were not being prosecuted by the union.

And that we must go to the National Railroad Board of Adjustment and that they must entertain these complaints or within six months if that was not done the court would reinstate our complaints in the United States District Court in New Jersey and give us a forum.

So the three cases, the opinions in which have been called to Your Honors' attention, as appearing in page 9 of the record here, are the opinions in those cases the pleadings in which were filed in 1951.

And the cases had not been decided when in 1957 this case was being argued on the first appeal to the United States Court of Appeals for the Third Circuit.

Now in the mean time the First Circuit Court of Appeals had decided that Shapiro case and up until that time I had regarded Judge Maden's decision in 1951 as representing the law on the subject that there was no jurisdiction in a court to entertain a railroad wage claim, but when in the Shapiro case I found that the First Circuit had decided to the contrary and that included one of the sitting judges, our own Judge Meyers from the Third Circuit I then wondered if I hadn't been originally right in the first instance.

So I trust Mr. Justice Frankfurter I get then to an answer to the question you put to my adversary as to whether or not I agree that wage claims generally are cognizable in court or whether they must go to the National Railroad Board of Adjustment.

There has been a change in my thinking.

As of now and since the decision in the Shapiro case, I am of the opinion that a common law court has jurisdiction over wage claims of railroad workers for otherwise Your Honors what happens to this right that they have and that a claim for wages is a common law claim cognizable in a common law court.

Law been known as such.

What do you do, with the right of the employee that he has under the Seventh Amendment to a trial by jury in a court, and in a Federal Court if he can establish diversity of citizenship, wherein has he given that away?

Wherein has it been taken away from him by a competent authority?

And in this case, may I ask, you have an employee whose right of trial by jury is involved, whose contract of employment antedated all of the legislation on the basis of which it could be said, that his right of trial by jury has been taken away and a remedy substituted by his having the National Railroad Board of Adjustment to take the jurisdiction of his case.

Well --

Justice Charles E. Whittaker: (Inaudible)

Mr. James M. Davis, Jr.: I am sorry Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. James M. Davis, Jr.: I do not sir, but what I say is this that irrespective of what the Federal Railway Labor Act says, the Seventh Amendment gives the right of a trial by jury in that type of a case, a wage case.

I say that the Federal Railway Labor Act could not take away that right without violating the Constitution.

Justice Felix Frankfurter: It could do it for the same reason that it can take away the common law right of unreasonable rates charged by railroads, as part of the power of Congress to regulate commerce.

You cannot now, the Pennsylvania Railroad may gouge you in the freight claims it makes against the shipment value and that common law before 1887 you could go into your Pennsylvania courts and sue for that gouging, but you can't do it today without first going to the Interstate Commerce Commission although the Act says every common law right shall be reserved.

Mr. James M. Davis, Jr.: Well of course Your Honor, I would naturally bow to what you said.

Justice Felix Frankfurter: But you are not (Inaudible)

Mr. James M. Davis, Jr.: That was not what I thought sir.

And I -- to finish my answer to you Mr. Justice Whittaker, I point out the time of this man's beginning of his employment, only in emphasis of the proposition that the constitutional rights which he had antedated the adoption of the legislation in question.

Justice Charles E. Whittaker: (Inaudible)

Mr. James M. Davis, Jr.: Well I wouldn't think so sir.

I thought it was a right that he would have and that could not be taken away from him without violating the Seventh Amendment.

In any event, in learning of -- in prosecuting these first three case at the board, we found Your Honors that the railroad position was, that the tracks over which Mr. DePreist or the three plaintiffs in that case at least, were said to have operated, were not the tracks of a foreign railroad, but they were Belt Line tracks, so the railroad said that had been established by reason of an agreement with the city and an ordinance that the city had thereafter adopted.

Now that was in conflict with information attained to us in a report by (Inaudible) and Abbot to the legislatures of the Commonwealth of Pennsylvania and the State of New Jersey surveying the Delaware River Port, in 1948, where that report points out that there is an agreement between the Baltimore and Ohio and the Pennsylvania Railroad whereby the Pennsylvania will do the switching of the Baltimore and Ohio at piers 98, and pier 100 in South Philadelphia.

We have never been able to establish the terms of that contract.

The railroad would never bring it forward.

We had no compulsory, and I point out to you sirs that the Act does not grant it to the board, the right of a compulsory subpoena.

It provides no right of or opportunity for discovery.

It provides no opportunity for cross examination of witnesses, and the material that is submitted to the board is not safeguarded by the necessity of a supporting oath or affirmation.

So that we found that these matters being very basic factual matters, being in dispute, we have no way whatever to develop it or to get from our adversaries information that was in their possession and within their peculiar knowledge or at least to explore whether or not that was not so.

Consequently when Mr. DePriest retired this suite was brought, and he, as has been pointed out, (Inaudible) pending the first appeal which was taken.

Now we feel that --

Justice William J. Brennan: You say that the three suits which are brought before the board were seven years in (Inaudible)?

Mr. James M. Davis, Jr.: Five I think Mr. Justice Brennan for this reason.

We filed the initial pleadings in late 1951.

Issue was joined I think in, sometime in 1952.

The cases were argued either in November or December of 1952 and we received the decisions from the board in March of 1957.

So it will be between four and five years.

Justice William J. Brennan: Is that usual proceeding (Inaudible)

Mr. James M. Davis, Jr.: I think so.

Justice Felix Frankfurter: That's one of the -- that's really one of the sources of the difficulty in these cases.

Mr. James M. Davis, Jr.: Yes it is sir.

Justice Felix Frankfurter: The Adjustment Board is way behind and sometimes doesn't -- is completely behind, it doesn't decide at all.

Mr. James M. Davis, Jr.: That's right.

Justice William J. Brennan: Well I would suppose that would be a fruitful source of irritation between the employee and employer --

Mr. James M. Davis, Jr.: It is.

I'm searching (Inaudible).

May I point that the national policy as expressed in Railway Labor Act of keeping these men at work, keeping them at their posts and keeping the railroads operating, important as it is, is only relevant to their right to able to see to it that they have an expeditious remedy for getting their just compensation and to the extent that that's denied to them or that they are delayed in the realization of it, in the event of a dispute, the same national policy is jeopardized.

Well now Your Honors, we felt and still feel that this suite fits within all of the law that has been declared by this Court in the construction of the Federal Railway Labor Act.

We're mindful of the rules that Your Honors declared in Order of Railway Conductors against Pitney, in Order of Railway Conductors against The Southern Railway, and in Slocum against the L & W, but we say that over here on the other side is, the Moore case is still good law.

In addition to what Mr. Justice Black said about it when it was decided by the Court, he commented on it in the decision of the Slocum case, pointed out that there was a distinction, that the Moore was not being overruled and pointed out a fact that my adversaries have at least not to mentioned at all during the litigation, that there was a reason for the distinction between the two lines of cases.

The reason being that when Moore was discharged, he ceased to be an employee, and that he therefore had the right to make an election as to whether he would go to the board and seek reinstatement or avail himself of his remedies in the Common Law Court, as for a breach of his contract of employment.

Now if that reason is good, and we think it is because the definition of the word employee certainly does not fit.

It does not fit the pre- status after he retired and it certainly doesn't fit now the present plaintiff who is trying to settle his estate and incidentally the diversity of citizenship has been perfectly preserved even by Mr. Day's appointment as administrator.

So that neither DePriest as retired employee nor Day as his administrator fits within this definition of an employee that the statute lays down.

The decision in the Slocum case in which the distinction was made by Mr. Justice Black was in 1950.

There had been nine years under -- of that rule's prevailing.

So as far as I know there has been no effort, at least Congress has not adopted any amendment to that to make it conform to what my adversaries would have you believe was the intent of Congress if the congressional intent different from that as defined by this Court in 1950.

Now they say well, we recognize that that there ought to be a right on the part of the discharged man to continue to sue at law but we think you ought to limit to him alone.

Well if that's true then I think they have a difficulty in explaining how they can fit or as Mr. Justice Douglas put it, how they can squeeze the concept of Mr. DePriest's position into the definition of an employee because the definition of a employee does not say that the board has -- or rather the section 153 (i) does not say that the board has jurisdiction over disputes which arose when the relationship of a employer and employee existed.

It says that the board has jurisdiction over disputes between an employee or group of employees and a carrier employer, so that it seems to us that the notion of a discharged employee being able to go to a common law court is almost inseparable from the idea that a pensioned employee or his administrator should have the same right.

Now the cases which I found in our state at least point out that in the case of an action for an alleged wrongful discharge, one of the measure -- one of the issues is what wages were owing to this employee at the time of his discharge, what -- is he entitled to collect through us.

So that's embodied in the remedy that clearly the man now has under the early case involves the same issue that we are asking to be tried – it's triable or may be triable in the common law of courts also.

I point out to Your Honors also that the, the fact that the Moore case was decided a long time ago even though the last mention was discussed in 1950 in the Slocum case, but in 1953 again this Court reiterated that rule in the Koppal against the Transcontinental & Western Airline.

And the only difference between the two cases was that in the latter case this Court found that it was necessary in a reverse to the action for a plaintiff to be able to show that he has complied with state law and exhausted his administrative remedies if the law of the particular state required that.

But otherwise the rule in the Moore case was reiterated and adhered to and the language I think of Mr. Justice Black in the Slocum case was re-quoted exactly.

Justice Felix Frankfurter: Mr. Davis may I trouble you to tell me what that Judge Kalodner meant, what is meant in Judge Kalodner's opinion on page, I happened to have that petition for writ of certiorari, “We are of the opinion that the District Court was not without jurisdiction in the premises and that at this stage of the action it does not appear that the plaintiff either should be barred whatever that be at this stage of the action.”

Mr. James M. Davis, Jr.: Well I, I think that of course Your Honor realizes that that the matter was being dealt with only on the basis of the pleadings.

Justice Felix Frankfurter: I understand that.

Mr. James M. Davis, Jr.: And I suppose that was the only qualification that Judge Kalodner was putting on because I know no other circumstance --

Justice Felix Frankfurter: Well that means this is, if the decision of the Court of Appeals is that, you go back to the District Court, would you not?

Mr. James M. Davis, Jr.: Yes sir.

Justice Felix Frankfurter: Would mind sketching the course of unfolding the development what would happen after you go back?

Mr. James M. Davis, Jr.: Well I think that we would entitle first of all to our remedies of discovery which we can't get any place else and I propose to follow those.

I assume we'd have an answer from the defendant and we'd ultimately get to trial.

Justice Felix Frankfurter: Now what would be the issues at the trial?

Mr. James M. Davis, Jr.: The issues at the trial would be as far as I can understand the factual issues from the other cases sir, it would be whether or not the place at which this work was performed was a place at which the City of Philadelphia, Pennsylvania and the Baltimore and Ohio had agreed where Belt Line tracks or whether they were tracks solely of the Baltimore and Ohio Railroad Company on which the Pennsylvania did switching on a contractual basis.

Justice Felix Frankfurter: Would any -- any provision of the outstanding collective bargaining agreement be called into question?

Mr. James M. Davis, Jr.: I can't conceive that it would be because I know of no issue.

Justice Felix Frankfurter: On what basis would you determine -- would you determine what the plaintiff rights were?

The ones -- were they spelled out in any contracts or they might have business practice, custom of the industry?

Mr. James M. Davis, Jr.: Your Honor there are two, two basic clauses of the contract that spell this out were included in the complaint already filed.

Justice Felix Frankfurter: Where are they -- where are they in the record?

Where are they?

Mr. James M. Davis, Jr.: I'll point out --

Justice Felix Frankfurter: Now that you are relying on clauses in the contract, aren't you?

Mr. James M. Davis, Jr.: Yes sir.

Justice Felix Frankfurter: Where are they?

Mr. James M. Davis, Jr.: On page 2 of the printed record, Your Honor will find in the bottom half of the page, Sections 4A (1) and 402 (A) which goes over and occupies the first half the page 3.

Justice Felix Frankfurter: Well 4A (1) and 4A2 (A)

Mr. James M. Davis, Jr.: 402 (A) yes sir.

Justice Felix Frankfurter: What but B and C, are they also involved?

Mr. James M. Davis, Jr.: Yes they are Your Honor?

Justice Felix Frankfurter: Now would this -- would be a jury trial?

Mr. James M. Davis, Jr.: Yes sir.

Justice Felix Frankfurter: (Inaudible) would the meaning of those clauses be submitted in the first place I suppose construed by the court, the Trial Court and would they be submitted to the jury?

Mr. James M. Davis, Jr.: I think they would have to be Your Honor along with evidence that these were trade, involves trade terminology.

I think that there would have to be some testimony as to the meaning of words in the trade.

And I think certainly that as a guide to the trial judge in instructing the jury, he could have recourse to any decision of the National Railroad Board of Adjustment that may rely on the subject.

Justice Felix Frankfurter: You mean just as we cite cases here, they would grow on prior decisions of the board?

Mr. James M. Davis, Jr.: Yes, Your Honor.

Justice Felix Frankfurter: Suppose this -- suppose at such a trial the decision comes out in your favor, a number of other employees, present, existing employees would be involved, would they not?

Mr. James M. Davis, Jr.: Yes they would.

Justice Felix Frankfurter: Now they would -- suppose they then make claim, I am talking about -- it's not people (Inaudible) but existing employees, they would say it's just been decided by the District Court and the (Inaudible) judges I am assuming they are all good – (Inaudible)

Mr. James M. Davis, Jr.: Yes, please do Your Honor.

Justice Felix Frankfurter: Alright.

They then say these very good employees would say whatever, this has just been decided and we come under exactly the same provision as was DePriest and the railroad says no, we don't recognize that, couldn't they?

Mr. James M. Davis, Jr.: Yes, they could.

Justice Felix Frankfurter: And how would that controversy be resolved?

Mr. James M. Davis, Jr.: Well there is one other fact in there, Your Honor should know and that is that most of the employees who are affected in this area by this issue have already at the behest of the union settled and released the railroad of any further liability.

Justice Felix Frankfurter: It happens to be in this case suppose if it weren't, what about new employees --

Mr. James M. Davis, Jr.: Well if it weren't I think they'd have the same right, they certainly should have.

Justice Felix Frankfurter: They couldn't really (Inaudible) existing employees couldn't do sue --

Mr. James M. Davis, Jr.: If the holding of this Court is that only those who were former employees can go to court then they could not go to court, that's right.

Justice Felix Frankfurter: So they go -- they could go to the Adjustment Board, couldn't they?

Mr. James M. Davis, Jr.: Yes sir.

Justice Felix Frankfurter: And the Adjustment Board would meet (Inaudible)

Mr. James M. Davis, Jr.: That's correct sir, because as Mr. Justice Black pointed out in the Slocum case that if such a thing should occur, the judgment of the court would not in anyways be binding upon the Adjustment Board.

Justice Felix Frankfurter: But it is clear in the open place that in the determination of the time of common law suit if you have brought -- if you were to sue and if you have up to this moment a right to pursue in the District Court would it involve construction of existing provision of (Inaudible)

Mr. James M. Davis, Jr.: That's right.

Now may I say as bearing on the comment that I think or the question that one of Your Honors asked my adversary along that same line, as to the ability of judges to intelligently construe these agreements.

The railroad at least, or the railroads have to rely upon the ability of the intelligence of judges to interpret those agreements because under the decision of this Court in the Washington Terminal Railroad case, in the event that the railroad is disappointed by the board's finding, it can draw back in the harness until the employee brings an enforcement suit, then they are entitled to a trial de novo before who, before the district court judges of the courts of the United States, and they have to determine and do determine the same questions that Your Honor, Mr. Justice Frankfurter, has just referred to and if the Court determines it in an enforcement suit, surely there they are binding upon the board.

Justice Felix Frankfurter: May I suggest the difference between getting an enforcement suit that would not be a jury trial, there would be no questions embedded in the (Inaudible) of the jury (Inaudible) questions of law to find the validity of the determination if there is --

Mr. James M. Davis, Jr.: That's undoubtedly true sir.

I'd like to remind Your Honors also that another one of your early decisions under the Federal Railroad Labor Act was one in which you took cognizance of the right of an individual employee to sue in court for his wages, and that is the Burley case.

There had been in that case an award of the board, but the -- when the matter got here there was a question of whether or not Burley had ever authorized the union to appear before him at the board, and Your Honors were being urged by the railroad to adopt the proposition that the finding of the board was final and binding upon this particular employee.

But Your Honors said that before you could discuss the finding -- the final and binding policy of an award of the board, you have first to determine whether or not it was valid and Your Honors determined that at least there was a fact question as to the validity of the award and remanded it to the District Court in Illinois where Mr. Burley might have his day in court.

I've never been able to find out what ever happened after that to that case, but at least here this --

Justice Felix Frankfurter: (Inaudible) what happened in the brotherhood (Inaudible)

Mr. James M. Davis, Jr.: Yes I know that sir.

I know how that was done, but from the point of view of establishing the fact that an individual, wage claimant, has got a case cognizable in the District Court of the United States if there is diversity of citizenship, I think that case still stands for the proposition that he does have a right to maintain his cause of action in the District Court.

Justice Hugo L. Black: What was your (Inaudible) what is his remedy?

Mr. James M. Davis, Jr.: Your Honor as a matter of right I don't think it has any.

There is language in some of the cases that there is a right on his part to have some court, some court of competent jurisdiction to determine whether or not the board has based its findings upon substantial evidence and if it has that's the end of it.

But there --

Justice Hugo L. Black: Is that the same remedy that the railroad has --

Mr. James M. Davis, Jr.: Oh no.

Justice Hugo L. Black: Before it decides against --

Mr. James M. Davis, Jr.: No sir it does not.

The remedies that the railroad has, is one of right, where they have a trial de novo, now under the Washington Terminal case, Your Honors decided that the railroad couldn't initiate that, except by refusing to obey the order of the board which compelled the employee to bring his enforcement suit and when he did, the railroad could then come in and have a trial de novo under Section 153 P, before a district judge, as to any defense that it ever had to the matter.

Now if the employee has any kind of correlative right, this Court has never so declared it, nor has any other that I know of.

Justice Hugo L. Black: (Inaudible)

Mr. James M. Davis, Jr.: That's right.

Justice Hugo L. Black: But the employee cannot.

Mr. James M. Davis, Jr.: That's right sir.

Now Your Honor, as Your Honors had that situation in the Siegfried case, in which application was made to Your Honors for certiorari and it was denied, and that case is cited in the footnote in Judge Kalodner's brief.

The dissenting judge there in the Fifth Circuit described a very long odyssey, that this plaintiff had traveled in an effort to try to get some review of this action by the board, but up to now the circuit courts nor this Court has not held that the employee has any review as a matter of right.

Justice William J. Brennan: (Inaudible)

Mr. James M. Davis, Jr.: You mean the fact there is a remedy in favor one?

Justice William J. Brennan: That is this one for the railroad and not for the other, I don't follow that?

Mr. James M. Davis, Jr.: Mr. Justice Brennan, Section 153 P of the Act provides expressly a remedy of enforcement for the employee.

It does not say that it's a right of review for the (Inaudible), but that has been I think spelled out by the Court in the Washington Terminal case.

A like right on behalf of the employee has never been pointed to by --

Justice William J. Brennan: Well I think what you said earlier is that in such an enforcement proceeding, there is something, I think you used the word de novo –

Mr. James M. Davis, Jr.: Trial de novo –

Justice William J. Brennan: -- and yet you said that whatever the review maybe and however he may get it, the employee -- the consideration in the employee's case is whether the determination of the board rests upon substantial evidence.

Mr. James M. Davis, Jr.: No sir, Your Honor misunderstood me.

In the review under Section 153 P, the employee comes in with an award of the board which under the statute is presumptively -- any findings of fact in that award are presumptively true.

They may be rebutted I take it, but prima facie they would be accepted as true.

The employer, however, comes in unencumbered by any binding effect of this award.

He can assert any defense that he ever had and the District Court tries a de novo with a right of appeal and that was -- that's been done in number of cases in the Third Circuit.

But the employee, if he is disappointed at the board, there is nothing said anywhere in the Act where he has any right of anything after that.

Some of the cases have said, and the Elgin case is an example of not so much of saying it expressly, but by spelling it out of the courts, of what the court did, but some of the cases said, that in such a situation a reviewing court has the right and duty to see whether or not the adverse finding of the board was supported by substantial evidence, and I take it, if it was not, then he has some sort of a remedy and the nature of that I'm sure of.

Justice Hugo L. Black: (Inaudible)

Mr. James M. Davis, Jr.: Well it decided Justice Black among other things, the same general principle that was decided by this Court in the Chicago River case just recently that the board's proceedings, the right and opportunity to go to the board was not one which the employee and railroad could avail themselves of or not at their option, that it was a compulsory thing, but it also decided that the employer had a right.

Justice Hugo L. Black: The railroad?

Mr. James M. Davis, Jr.: The railroad, yes sir, it had a right of the review other than by a suit for a declaratory judgment.

Here the railroad had brought a suit for a declaratory judgment as they had done also in the Slocum case and this Court said while you have a right of review.

It is not by way of declaratory judgment.

Your right of review is to disobey the order of the broad and wait until an enforcement suit is brought.

When that's brought then you can assert in the court any defense that you have ever had and you have a trial de novo.

Justice Hugo L. Black: That was affirmed here by the equally divided Court?

Mr. James M. Davis, Jr.: Yes it was sir.

Justice Felix Frankfurter: (Inaudible) Shapiro case, I've been looking at since and as I gather the opinion of the Judge Woodward (Inaudible) that was the case for both the extra wages by supplemental agreement and extra wages and for discharge.

Mr. James M. Davis, Jr.: Yes sir.

Justice Felix Frankfurter: And the court entertained the suit, it found that it was subject to a common law action and not subject to Railway Labor Board because that explicitly had no power to pass on a Puerto Rican Railway or (Inaudible), is that right?

Mr. James M. Davis, Jr.: I did not get that from the case sir.

It maybe that, but I didn't get it.

Justice Felix Frankfurter: And secondly and this interests me most that Woodward has for some reason rather the issue of improper discharge just slipped out of the case and in affirming the District Court left open the right to raise that question of discharge as a separate final difference cause of action or something like that which Mr. Justice Black suggested namely malicious interference, improper abrogation of a contract relation, is that right?

Mr. James M. Davis, Jr.: I think that's true sir.

I get the impression from the Court's opinion that this plaintiff was unrepresented by counsel and as his pleadings were so inartistically drawn it was difficult for the Court to understand just what he was driving at.

Justice Felix Frankfurter: (Inaudible) United States attorney might appear as his –

Mr. James M. Davis, Jr.: Yes.

Justice Felix Frankfurter: -- goes back, but the point for our purpose is if that case rather brings out vividly that the discharge, a discharge proceeding is treated as something independent outside of the reliance of a clause in a collective agreement which has to be interpreted or ultimately maybe interpreted in any event by the Railway Labor Board.

I think that's a correct statement, isn't it?

Mr. James M. Davis, Jr.: Well I think sir that in most cases of the suit for wrongful discharge, there would have to be some reliance on the collective bargaining agreement because at common law the right to discharge an employee at will was the normal situation.

Justice Felix Frankfurter: Maybe that -- you maybe right about that all I am saying the Shapiro case is quite consistent with my point of view an enforcement of the underlying the main prospect of Moore namely that this was simple discharge insofar it was any question of what wages he was entitled to that doesn't help us in this case because it was found that the Railway Labor Board had no jurisdiction over such an agreement regarding Puerto Rico.

Mr. James M. Davis, Jr.: But I don't think it's very much help either on the question of wages except that the Court says that they can't see any difference between a suit for wages and a suit for an unlawful discharge.

Other than logically I agree that there is not very much help, but I do think that --

Justice Felix Frankfurter: (Inaudible) not only my general respect for the First Circuit, but equally when it was reinforced there was Judge Meyer's associations --

Mr. James M. Davis, Jr.: However that -- the fact that the wage issue is or can well become a part of the issues of the discharged case triable by a common law of court such that it's likely to create no more disturbance than it does or has and the railway industry certainly indicates that if this Court would hold that administrator of a deceased employee or a retired employee were to bring a suit for his wages that there would not be such a disquieting effect in the industry as to violate the policy of the act.

Justice Felix Frankfurter: Well, I accept that any suggestion of a discharge proceeding may involve a suit for wages under a collective agreement that may require technical construction that your agreement undoubtedly --

Mr. James M. Davis, Jr.: Yes.

Justice Felix Frankfurter: Then it may not, as I look back at the Moore case, wages (Inaudible) apparently on the face of the complaint (Inaudible)

Mr. James M. Davis, Jr.: Yes sir, but we think Your Honors that as the law stands now declared by this Court that we are clearly entitled to maintain our action that the decision of the Third Circuit Court was entirely correct and that we are entitled to an affirmance of the judgment unless Your Honors decide to change what has been the long established rule of this Court.

Argument of Attorney General

Mr. Attorney General: May it please the Court, I have only a few comments.

In the first place the questions of remedy after an Adjustment Board award of review or finality of the award is not in this case at this time.

Justice Tom C. Clark: (Inaudible) the statements made it correct?

Mr. Attorney General: My statement.

Justice Tom C. Clark: I mean if the statement that the court and counsel made (Inaudible) that the railroad has the right to trial de novo (Inaudible) the employee has no right to decide.

Mr. Attorney General: I know of one enforcement suit in 25 years against the Pennsylvania Railroad in the so called trial de novo.

I know of very few suits following awards by employees on any railroads to contest the findings and the facts for the situation has been with regard to the railroad right to trial de novo, the general practical situation has been that during the period following an Adjustment Board award the union pressure has been so great on the railroads, economic pressure, that there are very few cases that have ever gotten in to court.

In the Washington Terminal case Mr. Justice Rufus then on the Court of Appeals in the District of Columbia, in my opinion simply decided that during the two-year period following an award when it is valid, an award -- a railroad cannot go to court under the declaratory judgment action to attack that award.

I believe it also stands for the proposition that you could not, even before the Adjustment Board award, go and get a declaratory judgment in a claim by an active employee.

Now there is an interesting problem that comes in the connection with this situation.

Chief Justice Earl Warren: Before we get through that, let's -- but it is the fact is it that the railroad refuses to obey an award --

Mr. Attorney General: There is a court remedy for the employee who has won his case before the board.

Chief Justice Earl Warren: Yes and the railroad is entitled to trial de novo before --

Mr. Attorney General: The act provides that the finding of facts of the board shall have a prima facie value.

Mr. Justice Rutledge in the Court below in the Boswell case said that in effect that amounts to a having the weight of expert testimony.

Justice Felix Frankfurter: I suppose the Adjustment Board decides against the employee.

Mr. Attorney General: Under the act, as it is presently construed, there is no, as I understand it and there are very few decisions, there is no review on the merits.

The courts have generally held that if there is – are allegations of fraud, duress, lack of due process, lack of compliance with procedural requirements of the act, lack of notice, then the court may take such action as is necessary.

Justice Felix Frankfurter: The theory is as I understand it, you correct me, the theory is that when the board decides against the railroad, they -- an administrative judgment is entered for the employee and the board itself has no power of enforcement, is that right?

Mr. Attorney General: That's correct.

Justice Felix Frankfurter: You must go to a court like an arbitral award, you must go to a court to get that judgment enforced and the judgment isn't enforced without further ado, that the railroads may raise questions about it.

Mr. Attorney General: Correct.

Justice Felix Frankfurter: And the questions they may raise starts with the presumptive acceptance of that award?

Mr. Attorney General: And the -- either party, if there's a dispute about the award can go back for an interpretation to the board and if a neutral has decided the case ordered by the Mediation Board or chosen by agreement, he comes in and participates in the interpretation, that happens in many cases.

Chief Justice Earl Warren: But suppose you have one of those cases and the court determines it one way and the Board continues to interpret it the opposite, do you not have the same situation that you would have that the coin was reversed?

Mr. Attorney General: You mean you would have to accept --

Chief Justice Earl Warren: You have the same confusion; you would have the same conflict that you told us would result if we permitted the former employee in this case to go into court.

Mr. Attorney General: Well the review of the Adjustment Board proceeding now is different in that case the Court has the expert advice of the Adjustment Board.

Now if it chooses to ignore that, I presume you have the ordinary Courts of Appeals who will file the termination and I think that even the Adjustment Board would accept a termination of the merits in case of a higher court, and it is likely that the referees and others decide those cases in the future might feel themselves bound in considerable weight, through a fairly considered court decision, which reverts the Adjustment Board.

Justice Felix Frankfurter: I should think more than that.

If Adjustment Board makes an award and the railroad and it then goes to the court, to the District Court or Federal District Court for enforcement and the Federal District Court adjudicates the scope of the award, wouldn't the Adjustment Board be bound by that court determination in the enforcement proceeding?

Mr. Attorney General: In the enforcement proceeding.

Justice Felix Frankfurter: Yeah certainly --

Chief Justice Earl Warren: In that one case.

Mr. Attorney General: At least for that individual --

Chief Justice Earl Warren: Yes but how about --

Mr. Attorney General: It would certainly have great weight to similar cases under the same agreement, of course the fact (Inaudible)

Justice Felix Frankfurter: You don't suppose if I would -- that the Adjustment Board can disregard a decision of the board -- of a court, perhaps even this Court, to which the award of the board went any less than the ICC had to respect the review of its award in reparation proceeding?

Mr. Attorney General: I believe that the board which happened to grant (Inaudible) same respect.

Justice Felix Frankfurter: Certainly.

Well that means it was respected and if it didn't, you get mandamus for it.

Mr. Attorney General: May I make two brief comments before my time finishes?

In the first place I meant to point out earlier in my argument and fail to that saying that when a man retires or otherwise leaves service he can't go to the Adjustment Board, also works a hardship on the employee.

There are special advantages to the employees in the Adjustment Board procedure.

As pointed out by Mr. Rutledge in Barber case, which would not be available in court, the Railway Labor Act, in Section 3 first he provides that an employee -- an enforcement proceeding does not have to pay any cost, it is paid by the United States Government such as Court of Appeal, likewise he is entitled to attorneys fees.

And the further thing that I would like to point out in closing, that it seems to me that if this Court holds, that retired employees, discharged employees and others who have left the service for one reason or other can take this type of claim to the board.

The railroads also should have the right to ask for declaratory judgment for the same type of disputes, in claims brought by those people.

That would mean and I am sure this would be opposed by every railroad labor union in the country, because in that way the railroads would circumvent the Southern Railroad case, the Order of Railway Conductors against Southern Railway, which said that you could not go get a declaratory judgment with regard to an agreement which would affect the future relations.

You would have a court decision perhaps involving only retired employees or those who had quit, which would permit the -- perhaps a Court of Appeals decision on the interpretation of an agreement, which was certainly over the objection of the unions to be committed to stand rather than independent determinations for the Adjustment Board.

Justice William J. Brennan: Have you any comment on the time lag (Inaudible) in all cases?

Mr. Attorney General: There always has been a time lag before that board.

Justice William J. Brennan: But five years – (Inaudible)

Mr. Attorney General: I think that, that is pretty much unusual.

It depends on the division involved.

There are four divisions of the board with jurisdiction over different types of employees.

The majority of the claims come from the operating employees in the first division.

I think the board has probably handled 26,000 claims in the 25 years of those employees and of late years there has not been as much in the way because in many cases the railroads and employees have agreed to setup special boards on individual properties to dispose of the cases and the backlog is way down below what it used to be.

The other divisions are pretty much up-to-date, they have decisions within six months in some cases.

The first division still has delay which I estimate at the present time is about a three-year delay.

Justice Felix Frankfurter: Haven't we had some cases here in which the question was raised that in view of the deadlock, not merely a time lag, but a deadlock within the board, there isn't any decision, am I wrong about that?

Mr. Attorney General: If there is a deadlock within the board, the parties by the Act are directed to agree on a neutral to decide or to ask the mediation board to appoint a neutral.

The question of deadlock where nothing is decided is where the question of change in rule is involved, which requires a majority vote --

Justice Felix Frankfurter: Well there is a deadlock on appointing of neutrals, I mean the --

Mr. Attorney General: Well if there is deadlock in appointing a neutral then either side can ask the mediation board to appoint one.

Justice Felix Frankfurter: Yes.

The mediation board has been deadlocked.

That deadlock stays, isn't that true?

Mr. Attorney General: The three men and I have never heard of it.

Justice Felix Frankfurter: Well --

Mr. Attorney General: It is (Inaudible)

Chief Justice Earl Warren: Thank you.